Straining (Analogies) to Make Sense of the First Amendment in Cyberspace

David Pozen

In
trying to figure out how the First Amendment applies to internet search engines
and social media platforms, courts and commentators have turned to somewhat
anachronistic analogies. Google’s search engine compiles and transmits content
supplied by third parties—and to this extent, many have pointed out, it looks
like a traditional publisher. On the other hand, Google’s search engine results
do not express critical curatorial judgments by Google or indicate Google’s
support for their content in the manner we generally expect of publishers.
Facebook’s Trending News feature ranks and disseminates stories based on
algorithms created by humans—and in this sense, it looks like a newspaper
editor. On the other hand, Facebook takes pains to minimize the influence of
human “biases” on these algorithms and to portray itself as a neutral conduit
for information.

For
these and other reasons, as Heather Whitney’s new paper explains, the analogies
that get drawn in these contexts are imperfect. There are significant
dissimilarities as well as similarities between the things being compared.
There are, moreover, other analogies that might be privileged instead: Why not
compare Google and Facebook to a shopping mall, or to a public trustee, or to a
company town? And still more fundamentally, there is an underlying question of
whether and why the First Amendment logic of prior cases should apply to such technologies. This is a question that
analogies in themselves cannot answer.

Whitney’s
paper, which is being published today as the third installment in the Knight
First Amendment Institute’s Emerging Threats series, deconstructs the use of
the “editorial analogy,” and of analogical reasoning more generally, in First
Amendment litigation and advocacy concerning some of our most powerful tech
companies. Whitney does not seek to advance any particular interpretation of
Google, Facebook, and the like. Rather, through careful conceptual and
empirical analysis, she seeks to expose the pitfalls of relying too heavily on
analogies in this area of law and thereby to shift ongoing First Amendment
debates onto more solid normative ground.

Three
response pieces engage with Whitney’s paper in very different ways. Eric
Goldman defends the validity of the editorial analogy for Google and Facebook,
but also maintains that their First Amendment rights do not depend on it to any
meaningful degree. Whitney’s critique of this analogy, Goldman worries, may
create space for overly aggressive or counterproductive forms of regulation.

Genevieve
Lakier, in contrast, agrees with Whitney that courts have been clumsy in
comparing search engines to newspapers; cable providers, Lakier suggests, are
closer counterparts to the former in the contemporary public sphere. Yet Lakier
disagrees with the notion that courts should therefore move away from analogies
altogether. When done well, Lakier submits, analogical reasoning plays an
indispensable role in guiding and constraining judicial discretion.

Finally,
Frank Pasquale hails Whitney’s intervention and asks how it might be pushed
further. Underpinning both First Amendment jurisprudence and public policy on
large internet intermediaries, Pasquale argues, should be the principle that
“free speech protections are primarily for people, and only secondarily (if at
all) for software, algorithms, artificial intelligence, and platforms.”
Whitney’s paper concludes by urging us to stop fixating on analogies and start
paying more explicit attention to the deep normative issues at stake in our
debates over search engine results and social media designs. Pasquale shows
what it looks like to do just that.